Appendix B: Annual Report of the Information Commissioner Ad Hoc

This is the fourth year that it has been my pleasure to report on the activities of the Office of the Information Commissioner, Ad Hoc. On April 1, 2007, the Office of the Information Commissioner (OIC) became subject to the Access to Information Act (the "ATI Act"). The law that brought this about did not create at the same time a separate mechanism to investigate any complaints that an access request to the OIC has been improperly handled. 

Since it is a fundamental principle of access to information law that decisions on the disclosure of government information should be reviewed independently, the office of an independent Information Commissioner, Ad Hoc, was created and given the authority to investigate any such complaints about the OIC.

More specifically, pursuant to subsection 59(1) of the ATI Act, the Information Commissioner has authorized me, as Commissioner, Ad Hoc:

… to exercise or perform all of the powers, duties and functions of the Information Commissioner set out in the Access to Information Act, including sections 30 to 37 and section 42 inclusive of the Access to Information Act, for the purpose of receiving and independently investigat[ing] any complaint described in section 30 of the Access to Information Act arising in response to access requests made in accordance with the Act to the Office of the Information Commissioner of Canada.

I am the fourth person to hold this office since 2007.

The following reviews all the complaints my office investigated and closed from April 1, 2014, to the end of my term on May 30, 2015.

Outstanding complaints from previous year

Three complaints from last year were still outstanding as this year began, all filed by the same person. 

The central issue in these complaints concerned the proper application of paragraph 16.1(1)(c) of the ATI Act. This provision exempts from production information obtained or created in the course of an investigation by the OIC. Once the investigation and all related proceedings are finally concluded, however, the exemption is partially lifted. At that point, the exemption no longer applies to documents created during the investigation.

In each case, our investigation revealed that the disputed documents had been obtained during the course of the OIC’s own investigations. The OIC was therefore right to apply the mandatory exemption and to refuse to disclose these documents.

In two of these cases, the OIC had also applied the exemption for personal information under section 19 of the Act. Our investigation confirmed that this exemption, too, was correctly invoked.

An interesting issue arose in one of these complaints. The OIC had made two separate responses to the ATI applicant. In the first, which it called its formal response, the OIC applied section 16.1(1)(c) strictly, refusing disclosure of all information obtained by it during its investigation, including the personal information that the requester himself had provided to the OIC. In the second, which the OIC called its informal response, it had given the applicant back his own personal information.

The OIC no longer makes such informal releases. Taking into account comments by this Office about paragraph 16.1(1)(c) in another matter, the OIC has changed its practice. In section 6 of its Annual Report on the Administration of the Access to Information Act from April 1, 2013, to March 31, 2014, the OIC explained why it had first adopted this practice, and why it had changed its procedures:

The ATIP Secretariat no longer issues informal releases to individuals seeking access to records pertaining to investigations of their own complaints. It had introduced this practice in the interests of transparency, since otherwise it would be unable, due to the requirements of paragraph 16.1(1)(c) of the Act, to release to requesters information they themselves had provided to the OIC in the context of investigations. The decision to cease this practice was made in light of observations by the Information Commissioner ad hoc in the context of an investigation about the OIC’s application of paragraph 16.1(1)(c). The Commissioner will address this matter in her upcoming special report on modernizing the Act.

Given this change of procedure, and the fact that the informal release had actually resulted in more information being given to the applicant, not less, this Office concluded that all three complaints were not well-founded.

New complaints this year

Twelve new complaints were received this year, 10 of them from the same person who had filed the three complaints discussed in the section immediately above. All 12 were investigated and disposed of before the end of my term.

The main issue in the 10 new complaints lodged by the same person, as well as in one complaint filed by another individual, again concerned the proper application of paragraph 16.1(1)(c) of the ATI Act. One also involved an exemption for personal information. 

The results of these 11 investigations were the same as for the three similar cases from last year. We found that sections 16.1 and 19 of the ATI Act had been properly applied throughout, and in the one instance in which the OIC had made both a formal and an informal response, that request had been processed before OIC had stopped issuing informal releases.

In the upshot, all 11 of these complaints were held to be not well-founded.

The last new complaint dealt with paragraph 19(2)(a) of the ATI Act, which allows the head of a government institution to disclose personal information if the individual to whom the personal information relates consents to the disclosure. This complaint raised two related issues: first, had the OIC properly sought the consent of the affected individuals and, second, if consent was given, did the OIC retain any residual discretion to refuse to disclose the records?

This last complaint arose out of an access to information request for a list of all access and privacy requests submitted to the OIC in a certain period. With respect to the Privacy Act requests, the OIC severed the names of requesters and other personal information, and then disclosed the rest of the information. But the OIC did not ask the Privacy Act requesters if they would consent to the disclosure of their personal information. It is longstanding policy of the Treasury Board Secretariat to protect the name of all requesters under both the Access to Information Act and the Privacy Act. The OIC said that it felt that for it to go against such established policy and to seek consent to the disclosure of personal names would cause distress to the people involved, and be perceived as insensitive to privacy values fundamental to the ATIP regime that the OIC is dedicated to preserving. Since it could see no public interest in releasing such details, it exercised its discretion not to seek consent. This Office agrees with this decision.

As for the ATI Act requests, many of them related to the same subject matter. The OIC realized that, because of the context and the interconnectedness of these records, if they were released even with the names severed it would be possible to figure out the identity or identities of other individuals associated with these documents. This is due to the so-called mosaic effect. This is the idea that when bits of seemingly innocuous information are joined with other bits of equally innocuous information, they sometimes combine to tell a story that the individual pieces by themselves do not. It is similar to what happens when a jigsaw puzzle is assembled from many separate pieces, none of which, by itself, looks like the finished picture. In this case, because these requests overlapped, there was a strong mosaic effect, so the other information was withheld.For this and other reasons, the OIC did not ask the requesters for their consent to the disclosure, direct or indirect, of their personal information.

This Office agreed with this decision, too, except in one instance in which it seemed more information might be safely disclosed. Following discussions with this Office, the OIC contacted the individual to whom the personal information related in that ATI request and sought her consent to its disclosure. This individual consented to the release of the entire document containing her personal information.

Despite the individual’s consent to the release of the whole document, the OIC nevertheless continued to exempt portions of the record. The OIC did so because it said it still believed that, through the mosaic effect, disclosing the entire record would reveal personal information about other people, too. The OIC therefore exercised its discretion under paragraph 19(2)(a) not to disclose the full record, an approach supported by recent Federal Court case law. This Office agreed with the OIC’s handling of this request.

This complaint was therefore resolved.

In addition to these complaints, this Office also received two letters about matters that were outside our mandate. One, for example, was from an individual who was dissatisfied with how the OIC had investigated his complaint about how another government department had dealt with his access request. This Office does not have jurisdiction to investigate such cases. Our mandate is limited to receiving and investigating complaints that an access request for a record under the control of the OIC itself may have been improperly handled.

Conclusion

The existence of an independent Commissioner, Ad Hoc, ensures the integrity of the complaints process at the OIC. It has been a privilege to serve as Information Commissioner, Ad Hoc, these past four years.

 

Respectfully submitted,

John H. Sims, Q.C.